Those who can make you believe absurdities, can make you commit
atrocities.- Voltaire

Ismail Jalagir, a senior counsel
from Hubli (Karnataka) and Mohammad Shoaib, a senior advocate from
Lucknow (U.P.) might not have heard about each other. But even their
strongest critics would admit that they are made of the same mettle.If
there are rewards meant for lawyers who are ready to go the extra
mile to defend rigths granted to citizens under the constitution then
both these worthy citizens of the country would be the first on the
list.

What they
have done and achieved - without bothering about the dangers to personal
security and wellbeing - is really stupendous. They not only defied
the unethical ban imposed by their fellow 'brethren' from their profession
about not taking up specific cases but also exposed the manner in
which a particular community is being 'stigmatised and terrorised'
with due connivance of the police, media and a pliant legal fraternity.

It is for
everyone to see that but for the efforts of Mohammad Shoaib, Aftab
Alam Ansari from Kolkatta would have been languishing in jail as being
a 'Lashkar-e-Toiba' operative supposedly involved in the bomb blasts
in UP courts.

And there
would have been no counsel for people like Asadullah Abubaker, Riyazuddin
Nasir, Mohammad Asif and Mohammad Shakeel from Hubli and adjoining
areas if Ismail Jalagir had not decided to take the plunge.In fact
when Karnataka police arrested this foursome under charges of 'terrorism'
there was no one to argue their case. Looking at the fact that nobody
was ready to take up the cases of these people after the unanimous
resolution by the Hubli bar association (12 th February) which had
resolved not to fight cases on behalf of persons charged with 'anti-national'
activities, Ismail Jalagir decided to act.

It need
be emphasised that for such courageous act he faced wrath of Sangh
Parivar. Miscreants tried to set fire to his office and even his junior's
house was stoned. (Ref : Justice Can' See, Won't Hear, Suresh Bhatt,
Letters, Tehelka, 10 May 2008) The role of the media in the whole
case was also biased from day one. Despite senior police officers
contention that the accused had no specific targets in Karnataka and
there was no definite information, the local media had mounted a cacophonic
campaign of misinformation.

As of now
Mohammad Shoiab is handling many such cases in different courts of
UP. Of course, there is no denying fact that much like Ismail Jalagir
he is still facing the consequences of taking such a principled stand.
He has come under direct physical attack at many places and in one
latest incident in Faizabad courts he had to be literally 'cordoned'
by a police team to save him from getting badly thrashed by fellow
lawyers.

It is a
different matter none of them have refused to be cowed down by such
threats and intimidatory tactics.

A disturbing
aspect of the whole scenario is that neither Hubli nor Lucknow are
exceptions.

Today one
after the other bar associations are coming forward and passing resolutions
about not taking up cases of specific nature which according to them
have 'anti-national' motives. And the latest to join the bandwagon
is bar associations in Madhya Pradesh who have declared that they
would not take up any cases where alleged operatives of a Islamic
organisation were nabbed by the police. We know that the M.P. police
arrested many people including ex-Chief of a particular organisation,
claiming that they were associated with it. ( Let me make it very
clear at this juncture that I do not hold any brief for sectarian
organisations who have a very bigoted view of history - may they claim
allegiance to any of the religions.)

The vehemence
with which these bar associations have come forward to declare and
implement their resolve, it is becoming clear that for them it is
another name for wearing patriotism on their sleeves. And they have
not limited themselves to passing resolutions, they have exhibited
their 'readiness' to implement it also. At places they have not even
hesitated in physically assaulting/intimidating anyone who opposed
such a move or tried to take up cudgels on behalf of the accused who
were charged with 'terrorism' by the police.

The case
of Khalid and Tariq who are languishing in jail since last four months
supposedly ( according to the police) for 'executing the serial blasts
in courts of UP which left 14 people dead' presents a representative
picture of the whole situation.

If one
searches the record of the Jamia Tul-Salahat Madarsa in Jaunpur where
Khalid use to teach, it tells us that not only he was present on the
day (23 Nov) in the Madarsa but had also checked the copies of the
students.The judge has been asked to cross-check the UP police story
which says that Khalid landed in Lucknow in a bus on November 23 morning,
met other accomplices, bought new cycles, planted bombs in Lucknow
court premises and returned immediately to Jaunpur.

The recent
decision of the UP government asking a retired judge to ascertain
whether both these persons arrested for the court blasts in state
are indeed terrorists or not, is an indicator of the pressure governments
are facing over repeated complaints that the state police is implicating
Muslims as terrorists.

STF - SPECIAL
TASK FORCE OR SPECIAL TERRORIST FORCE ?

According
to an investigation done by 'People's Union for Human Rights' (PUHR)
whose extracts have appeared in different publications ( Re : 'Samayantar'
- hindi magazine, April 2008)It tells us that Khalid was literally
kidnapped by STF from a snacks shop on 16 th evening ( Mariyahu -
Jaunpur) by people in civil dress who had come in a Tata Sumo which
did not carry any number plate. Hundreds of people were mute witness
to the kidnapping drama. Despite Khalid's family's best efforts no
case of kidnapping was registered. On 19 th Decemeber police reached
Khalid's house and interrogated his family members for hours together.
Khalid's uncle Zaheer told the PUHR team that the police took with
it Quran and a book on Hadees which was later claimed as part of 'terrorist
literature'

Tariq was
kidnapped by a similar team on 12 th December from Rani ke Sarai,
Azamgarh at 12 noon. The police registered a case of 'missing' (not
'kidnapping') on 14 th December. The kidnapping case gave rise to
lot of consternation in the area with political and social organisations
coming forward to protest police inaction. On 17 th night around three
dozen police personnel reached Tariq's house, interrogated his family
members, took their signatures on blank papers and also carried with
them some books in Tariq's possession ( which was later declared as
'terrorist literature).

Sixteen
witnesses of Tariq's kidnapping ( which includes 12 Hindus and 4 Muslims)
have filed an affidavit that Tariq was kidnapped before their eyes.
Hundreds of residents of Mariyahu did a signature campaign and have
presented a 'video recording' to the administration to tell it that
Khalid was similary kidnapped before their eyes.

If one
were to believe the STF version Khalid Mujahid and Tariq, are members
of Harkat-Ul-Jehadi (HUJI) and were 'involved in the serial blasts
that left 14 people dead.' it would nothing but a mockery of justice
itself.

DENYING
LEGAL HEARING 'DEMOCRATICALLY

If earlier
the 'boycott' by bar associations, seemed to be a spontaneous reaction
of the lawyers to any individual gory act which created revulsion
in wider populace, now it seems to be more organised affair where
vested interests owing allegiance to one of the sectarian ideologies
seem to have taken over. These forces have tried to manipulate/orchestrate
people's anger over 'violent acts' in such a manner that it has created
'us' versus 'them' like situation culminating in the stigmatisation
of a particular minority community. Much on the lines of the law and
order people, who are ready with an explanation after every such act
with names and addresses of the miscreants 'from across the border',
the vocal minority among the lawyer community have no qualms in fixing
responsibility for the violent/terrorist act.

In fact
the complete absence of the lawyers from the courts in addressing
particular cases which have/had 'terrorist' bearings has led to a
situation where many innocent persons are languishing in jails for
no fault of theirs and it has become impossible to get them released
even on bail.

It would
not be incorrect to say that Uttar Pradesh is the 'birth-place' of
this phenomenon. It all started in 2005 when there was a terrorist
attack on the temporary structure at the disputed site. Faizabad bar
association took a lead and declared that it would not take up cases
of accused in the particular case. When a team of lawyers from outside
the city ventured to reach the Faizabad courts to take up bail applications
of the accused, it literally came under attack and had to leave the
city under police protection. When legal proceedings in the Varanasi
case started ( 2006) where there were terrorist incidents in Sankatmochan
temple and railway station, one was witness to a similar action by
the Varanasi lawyers. November 2007 witnessed bomb blasts in the courts
of Varanasi, Lucknow and Faizabad and then the bar associations in
Lucknow and Barabanki also joined the boycott of 'terrorist' cases.

Mr K.G.
Kannabiran, Vice president of People's Union for Civil Liberties and
a famous human rights activist, who is himself an advocate by profession,
recently issued an appeal to fellow lawyers to reconsider and rescind
their decision of boycott of particular cases. In his well publicised
appeal he rightly said :

The Bar
Resolution stifles right of the accused to defend himself at the trial.
Our right to practice this profession is part of our fundamental rights.
The accused has a right under Article 21 of the Constitution. Article
22 (1) gives the right to a suspect to have a lawyer present at the
time of arrest and interrogation. The lawyers right to practice a
profession or calling is directly concerned with these fundamental
rights of a citizen who is an accused. Article 21 right includes the
right of the accused to have lawyer for the defense. A lawyer’s
freedom of choice while practicing his calling has limitations. We
are not here concerned with the preferences available to a lawyer
for practicing his calling. We are, Respected Members, concerned here
with collectively imposing a ban on lawyers making themselves available
to defend a particular accused? Have the professional members such
freedom to practice their calling? Can the members of the Bar negate
the right of the accused available to him under Article 21? The position
taken by the Resolution is not morally or constitutionally justified.
An emotional response is not a moral response. Arguing for a fair
trial cannot be equated with or confused with asking to exonerate
the guilty of his crime. Emotional indignation should not degenerate
into pharisaical self-righteousness. There is no dichotomy between
“morality” and the Constitution if one learns to do a
moral reading of the Constitution. Let us not proceed on the facile
assumption that there is no affinity between law and justice and law
and morality.

OVER-LAWYERED
BUT UNREPRESENTED !

When there
are too many policemen, there can be no liberty.
When there are too many soldiers, there can be no peace.
When there are too many lawyers, there can be no justice.

One does not know the context in which the Chinese-American writer,
translator and editor Lin Yutang mentioned the absence of justice
when one has too many lawyers. Perhaps he was observing ( to quote
Jimmy Carter) the 'over-lawyered and under-represented' US society
which had 'heaviest concentration of lawyers on Earth' where 'legal
skills seem to be unfairly distributed with ninety percent of the
lawyers serving mere 10 per cent of the people.'

Definitely
he was not contemplating the situation as it exists in many courts
of h India at the fag end of 21 st century's first decade where one
is witness to lawyers collectively refusing their services to accused
in specific cases and thus facilitating denial of justice to them.

One can
just hope that wiser sense prevail among the legal community and they
would decide to rescind their earlier resolve to boycott such cases.
In case it does not happen then it is "..[u]pto the Bar Council
of India which is a regulatory body to take serious note of the resolutions
passed by the bar associations (a forum of lawyers) which amount to
not merely professional misconduct but are an infringement of the
constitutional and human rights of the accused." (Accused, Presumed
Guilty, april 26, 2008, Economic and Political Weekly)

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